The Iowa Supreme Court has ruled that a lower court did not abuse its discretion when it concluded that a school district was not liable for the actions of a student-athlete, who attacked another student, because the actions of the attacker were not foreseeable.
The incident occurred on January 13, 2004 in a varsity basketball game between Iowa Mennonite High School and Winfield-Mt. Union High School. In the second half of the game, Andrew McSorley, a guard for WMU, struck Jeremy Brokaw, an Iowa Mennonite player, causing him to fall to the ground. Immediately after McSorley struck Brokaw, the referee called a technical foul on McSorley and ejected him from the game. While Brokaw would return later to the game, he played poorly.
Brokaw and his family ultimately sued, alleging that McSorley committed an assault and battery, and WMU was negligent in failing to control the conduct of McSorley. A nonjury trial was held. The court found that McSorley committed a battery and issued a judgment against McSorley in the amount of $23,000. The court dismissed the suit against WMU. The plaintiff appealed.
The Supreme Court began its analysis by noting that Brokaws’ claim against the school district centers on whether WMU negligently supervised McSorley. “For this proposition, the district court cited Godar v. Edwards, 588 N.W.2d 701 (Iowa 1999), a case decided under the Restatement (Second) of Torts. “Although Godar describes this cause of action as a negligent supervision case, Godar was, in fact, a case involving the negligent control of a third party’s actions, i.e., the alleged perpetrator of abuse upon a student. Godar, 588 N.W.2d at 707-08; cf. City of Cedar Falls v. Cedar Falls Cmty. School Dist., 617 N.W.2d 11, 18 (Iowa 2000). Godar, however, makes it clear that school districts have a duty of reasonable care in providing for the safety of students from the harmful actions of fellow students, a teacher, or other third persons. Godar, 588 N.W.2d at 708.
“Godar, however, limited that duty of reasonable care ‘by what risks are reasonably foreseeable.’ Id. In Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009), we adopted the principles of the Restatement (Third) of Torts: Liability for Physical Harm, which provide that ‘the assessment of the foresee ability of a risk is no longer part of the duty analysis, but is ‘to be considered when the fact finder decides if the defendant failed to exercise reasonable care.’ Thompson, 774 N.W.2d at 835 (citing Restatement (Third) of Torts: Liab. for Physical Harm § 7 cmt. J, at 97-98 (Proposed Final Draft No. 1, 2005) [hereinafter Proposed Final Draft]).”
After concluding that “the general duty to exercise reasonable care applies here,” the high court turned to whether there had been a “breach of duty.”
It noted the following examples of “situations where the defendant has created or increased the likelihood of injury by a third person: the defendant’s conduct may make available to the third party the instrument eventually used by the third party in inflicting harm; or that conduct may bring the plaintiff to a location where the plaintiff is exposed to third- party misconduct; or that conduct may bring the third party to a location that enables the third party to inflict harm on the plaintiff; or the defendant’s business operations may create a physical environment where instances of misconduct are likely to take place; or the defendant’s conduct may inadvertently give the third party a motive to act improperly. Restatement (Third) § 19 cmt. e, at 218.
“Two of the above examples may have specific application in a sports setting. For example, where a coach exhorts his players to injure an opposing team’s star player, the coach has provided motivation for a player to act improperly. This situation does not exist here. This case does, however, present a situation where the defendant’s ‘conduct may bring the third party to a location that enables the third party to inflict harm on the plaintiff.’”
The court drew a parallel, writing that a person, who loans a car to an ordinary friend for the evening is not guilty of negligence in entrusting the car, “even though there is some abstract possibility that the friend might drive the car negligently or recklessly in the course of the evening.” However, “if the friend has been drinking or has had his or her license revoked for previous episodes of deficient driving, a person could be negligent for lending the car. The risk is sufficiently foreseeable to provide a basis for liability when ‘the actor has sufficient knowledge of the immediate circumstances or the general character of the third party to foresee that party’s misconduct.’
“This principle is readily applied to an athletic coaching situation. During the course of a game, a coach must make the determination whether to allow a player to participate or bench that player. If the coach’s knowledge of the immediate circumstances or the general character of the player should alert the coach that misconduct is foreseeable, then reasonable care would require the coach to make the decision to bench that player until the risk of harm has dissipated.
“The district court, in applying the forseeability test, framed the question as whether the school district knew, or in the exercise of reasonable care should have known, that McSorley was likely to commit a battery against an opposing player. The plaintiffs assert that the trial court asked the wrong question in determining whether a breach occurred. The plaintiffs seek to frame the issue as whether WMU could reasonably foresee that McSorley could act in an unsportsmanlike manner sufficient to potentially cause injury to another, while the trial court framed the issue as whether WMU could foresee that McSorley would intentionally strike another player in a violent fashion.
“That physical contact, even intentional physical contact, and injuries will occur in high school basketball games is somewhat foreseeable.” The court went on to site a decision of the Massachusetts Supreme Court — Kavanagh v. Trs. of Boston Univ., 440 Mass. 195, 795 N.E.2d 1170, 1178 (Mass. 2003) — as an “analogous situation.”
That court wrote: “In a general sense, one can always foresee that, in the thrill of competition and the heat of battle inherent in a contact sport, any player might someday lose his or her temper and strike an opposing player. If that possibility alone sufficed to make an assault on the field of play reasonably ‘foreseeable,’ schools and coaches would face liability every time they allowed their enthusiastic players to take the field against an opposing team. For these purposes, foreseeability must mean something more than awareness of the ever-present possibility that an athlete may become overly excited and engage in physical contact beyond the precise boundaries of acceptably aggressive play.”
The Iowa Supreme Court reasoned that “the question of whether WMU breached its duty of care turns on WMU’s knowledge of McSorely’s general character or the nature of the immediate circumstances, a question of fact. On these factual issues, the district court determined that ‘WMU officials did not know, nor in the exercise of ordinary care should have known, that McSorely was likely to commit a battery against an opposing player.’”
Jeremy A. Brokaw et al. v. Winfield-Mt. Union Community School District et al.; S. Ct. Iowa; No. 07-1328, 2010 Iowa Sup. LEXIS 91; 9/10/10
Attorneys or Record: (for appellants) Martin A. Diaz and Elizabeth Craig of the Martin Diaz Law Firm, Iowa City. (for appellee school district) Steve Ort of Bell & Ort, New London
